The Virginia Business Litigation Blog
The doctrine of respondeat superior holds that an employer is liable for the tortious act of his employee if the employee was performing his employer’s business and acting within the scope of his employment. The doctrine “applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose.” (See Manuel v. Cassada, 190 Va. 906, 913 (1950)). An employer’s exposure for its employee’s torts generally ends when the employment ends. But what if an employee conspires with another while on the job but doesn’t carry out the plan after his employment is terminated? The Court of Appeals of Virginia dealt with this issue in an opinion published yesterday and answered the question in the employer’s favor. It held that a civil conspiracy formed during employment does not extend the employer’s liability to injuries inflicted after termination, because in Virginia a civil conspiracy is actionable only when the underlying tort causes damage, and here that happened only after the employment relationship had ended.
The facts of Hubbard v. All Maid Up, LLC, are troubling. A franchisee of the MaidPro cleaning service advertised that it ran background and criminal history checks on every staff member before hiring. In February 2021, it hired Xavier Hudspeth, the son of a current employee, without running a background check. Hudspeth had a juvenile record involving theft, firearms, and violence, and was allegedly a gang member. He quit in September 2021. Over the next several weeks, two customers reported to the company that firearms were missing from homes Hudspeth had cleaned. The company did not investigate or notify police. Instead, in January 2022 it rehired Hudspeth, again without a background check, and two days later sent him to clean the Norfolk home of William Moore and Connie Hubbard, longtime customers. Hudspeth entered a room the cleaners were forbidden to enter, and Hubbard caught him leaving it. A handgun later turned up missing. Around the same time, Hudspeth told an associate, Andra Brown, that he had found a home with guns, and the two agreed to rob it.
The company finally ran a background check on January 31, 2022, suspended Hudspeth the next day, and fired him on February 2. On February 28, Hudspeth and Brown went to the residents’ home. Brown shot and killed Moore when he opened the door, then shot Hubbard as she called 911. Hubbard and Moore’s estate sued the franchisee, the franchisor, and others for civil conspiracy, negligence per se, negligence, vicarious liability, and negligent hiring. The franchisee filed pleas in bar based on the undisputed termination date, and the trial court granted them.
On appeal, the plaintiffs conceded that Hudspeth was no longer employed on the day of the shooting. Their theory was that the conspiracy with Brown was formed earlier, while Hudspeth was cleaning the residents’ home on the company’s behalf and casing it for guns. Those acts, they argued, were overt acts in furtherance of the conspiracy committed within the scope of employment. The Court of Appeals rejected the argument by combining two lines of Virginia Supreme Court authority. First, respondeat superior applies only when a master-servant relationship exists “at the time and in respect to the very transaction out of which the injury arose.” (See Manuel v. Cassada, cited above). The employee must have committed the tort while actively engaged in a job-related service, and no such relationship exists once the employee has been terminated.
Second, and decisively, Virginia treats civil conspiracy as a vehicle for liability for an underlying tort, not as an independent wrong. The gist of the action is the damage caused by acts done in furtherance of the conspiracy, not the combination itself. (See Gelber v. Glock, 293 Va. 497, 533 (2017)). The claim lies only where the plaintiff is damaged by an act that is itself tortious, and the predicate act must independently impose liability on the primary wrongdoer. The court noted that a minority of states treat conspiracy as independently actionable, but Virginia is not among them. It followed that the tort, for timing purposes, occurred when the residents were harmed. The court acknowledged that casing the home was wrongful, but it was not the wrongful act that caused the residents’ injuries. Nothing in the complaint alleged that the reconnaissance or the agreement itself damaged anyone. The injuries came from the murder, robbery, and malicious wounding, all of which occurred weeks after Hudspeth’s termination.
The court applied the same reasoning to the negligent hiring and negligent retention claims. Those claims cease to be viable for conduct committed after the employee is no longer employed. Because entering into a conspiracy is not itself a tort, the only conduct for which the residents could recover was the attack, and it fell on the wrong side of the line. The court separately held that the plaintiffs had not pleaded an express undertaking sufficient to create an assumed duty to warn or protect, notwithstanding the company’s background-check advertising, but that holding rests on a different body of law.
The court noted in a footnote that fraud claims may be treated differently: “This holding does not mean an employer could not be vicariously liable for fraud committed by an employee if damage from that fraud is not experienced until after the employee no longer works for the employer. If plaintiffs allege that an injury was proximately caused by representations made by an employee, for example, the timing of the injury alone is not dispositive.” (See Opinion, FN 7). Although the court did not explain the distinction in detail, I surmise the likely reason is that a misrepresentation is itself a wrongful act while the formation of a conspiracy is not.